Report: Prop 8 opponents lobbying DOJ to side with them in Supreme Court gay marriage case

posted at 7:41 pm on December 10, 2012 by Allahpundit

Nothing surprising about this, but in case there was doubt, here’s Greg Sargent to dispel it:

The Obama Justice Department is not saying whether it will address this question. But sources tell me the legal team representing the plaintiffs in the Proposition 8 case — Ted Olson, David Boise, and Ted Boutrous — plan to lobby the administration to publicly declare that the right to gay marriage is protected by the constitution, and to file a legal brief supporting their argument to that effect.

This would be a big, big move on the administration’s part. And Obama must do it, for two reasons. First, because it could help influence the Supreme Court to reach a broad conclusion on the constitutionality of gay marriage. Second, weighing in could help prepare public opinion to accept this right, too.

One of the overlooked footnotes to O’s cynical “evolution” on gay marriage back in May was that he supported legalization at the state level but not as a matter of one-size-fits-all national policy. He was explicit about it too, purely as a way to reassure religious Democrats opposed to SSM that he wouldn’t try to impose his policy preferences in this area. The One hates federalism, but if he has to nod at it in order to cover his ass with his base before an election, he’ll do that. Remember?

At a certain point, I’ve just concluded that– for me personally, it is important for me to go ahead and affirm that– I think same-sex couples should be able to get married. Now– I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue. There’s a tendency when I weigh in to think suddenly it becomes political and it becomes polarized.

And what you’re seeing is, I think, states working through this issue– in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.

I told you on the day he said that that it was another politically calculated charade and that if/when SCOTUS came down from the mountain with the tablets proclaiming gay marriage a matter of equal protection, the White House would celebrate it euphorically even though constitutionalizing this issue directly contradicts Obama’s argument in the excerpt above. And that’s precisely what’ll happen. Sargent, in fact, barely nods at O’s stated federalist position, and why should he? It’s a joke, designed at the time simply to temper the backlash among potential Obama voters to his endorsement of SSM. Now that he’s safely reelected, though, the charade can drop and O can order the DOJ to argue that, yes indeed, gay marriage should be legal from coast to coast as a matter of inviolable constitutional principle. I think that’d be incredibly stupid, as it’ll only compound the outrage among social conservatives and federalists once the Court short-circuits the democratic process and imposes SSM by Obama-endorsed judicial fiat. The pro-gay-marriage side is winning the culture war on this and will eventually win the war at the polls as older voters die off, but evidently the left cares less about building abiding respect for the legitimacy of SSM than in seizing its chance in court no matter what that means for embittering the opposition. The Court’s legitimacy will be damaged too, which is probably the main counterweight in Kennedy’s mind to the temptation of writing yet another watershed opinion on gay rights. If O really does care about broad acceptance of SSM, he’ll back off on the Prop 8 case and give SCOTUS a wide berth to rule narrowly. But Obama being Obama, it’ll be awfully hard to resist a chance to impose a new rule nationally with one fell swoop.

Just one question: Hasn’t he already argued, essentially, that gay marriage should be legal under the Equal Protection Clause? When the DOJ decided last year that it would no longer defend DOMA, it gave this reasoning:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.

Read this post for a fuller explanation of why this language is significant, but the nutshell version is that Obama’s DOJ is arguing here that laws that discriminate against gays should be given special scrutiny by courts under the Equal Protection Clause because gays are a historically persecuted group. Traditionally, once the Supreme Court finds that special, or “heightened,” scrutiny is warranted, the law being challenged is almost always struck down as unconstitutional. Granted, the DOJ’s argument above is aimed at DOMA, which doesn’t deal squarely with gay marriage the way Prop 8 does, but its constitutional reasoning applies just as well to the latter law — and since SCOTUS has decided to review DOMA together with Prop 8 this term, it’s bound to apply the Justice Department’s anti-DOMA argument to Prop 8 as well. In other words, Obama’s legal team doesn’t necessarily have to weigh in on Prop 8. By weighing in against DOMA, it essentially already has.